Tuesday, January 19, 2016

EEOC Issues New Guidance on Discrimination Against Muslims As Anti-Muslim Rhetoric Rises

Anti-Muslim rhetoric has risen dramatically in the aftermath of the Paris and San Bernardino terrorist attacks. GOP presidential front-runner Donald Trump said he would require Muslims to register in “databases, as the Nazis registered Jews, and that he could not rule out making Muslims wear special identification. Also, fellow GOP candidate Ben Carson compared Syrian refuges to “rabid dogs. “We are operating in an atmosphere of hysteria and fear,” said Ibrahim Hooper, National Communications Director for the Council on American Islamic Relations. “I have never seen it like this, not even after 9/11.”

Coinciding with the rise in anti-Muslim rhetoric, EEOC Chair Jenny R. Wang issued a statement to “Address Workplace Discrimination Against Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern. The statement provided, in relevant part,

America was founded on the principle of religious freedom. As a nation, we must continue to seek the fair treatment of all, even as we grapple with the concerns raised by the recent terrorist attacks. When people come to work and are unfairly harassed or otherwise targeted based on their religion or national origin, it undermines our shared and longstanding values of tolerance and equality for all.

The EEOC also released two documents explaining federal laws which prohibit employment discrimination against individuals who are, or are perceived to be, Muslim or Middle Eastern. As a general overview, Title VII prohibits employers from discriminating against individuals because of their religion in hiring, firing, and other terms and conditions of employment. The Act requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would pose an undue hardship to the employer. A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his or her religion. Flexible scheduling, voluntary substitutions or swaps, job reassignments, and lateral transfers are but some examples.

Although these documents are intended to assist employers (and employees) in understanding their rights and responsibilities, the timing also suggests they are reminders to employers that religious discrimination will not be tolerated. This comports with the EEOC’s Strategic Enforcement Plan in which it promised to continue prioritizing issues that may be emerging or developing, and respond swiftly to significant events (e.g., the Paris and San Bernardino attacks) that may impact employment practices in order to prevent their spread.

During the last few years, the EEOC has aggressively pursued religious discrimination cases in all segments of the workforce—e.g., healthcare, hospitality, retail, staffing, manufacturing, and food/beverage services. In that span, the EEOC has recovered more than $4,000,000, plus injunctive and other forms of make-whole relief, through pre-trial settlements, jury verdicts, appellate court victories, and consent decrees. See EEOC, Fact Sheet on Recent Religious Discrimination Litigation (last updated Feb. 19, 2015), available athttp://www.eeoc.gov/eeoc/litigation/selected/religious_discrimination_facts.cfm.

In EEOC v. AutoZone, Inc. (Mar. 2012), for example, AutoZone settled with the EEOC in a case in which AutoZone was alleged to have subjected a Sikh employee to harassment when managers disparaged his religion, asked him if he had joined Al-Qaeda and whether he was a terrorist, failed to intervene when a customer referred to him as Bin Laden and made terrorist jokes, and refused to accommodate his religious need to wear a turban and kara (religious bracelet). AutoZone also agreed to enter into a nationwide consent decree requiring it to adopt, implement and distribute an anti-harassment and religious discrimination policy to all employees, and submit reports to the EEOC.

In EEOC v. Mims Distributing (Jan. 2015), the EEOC received a favorable settlement and agreement to enter into a consent decree in a case in which the employer refused to hire an applicant who declined to cut his hair for religious reasons. In EEOC v. Star Transport Inc. (Oct. 2015), the EEOC also announced a jury award of $240,000 to two Muslim truck drivers who were fired from their jobs as over-the-road truck drivers when they refused to transport alcohol because it violated their religious beliefs.

In EEOC v. Abercrombie & Fitch Stores, Inc. (July 2015), the Supreme Court reversed the Tenth Circuit and ruled in favor of the EEOC in a case involving a young woman who wore a hijab or religious headscarf which Abercrombie said, in refusing to hire her, conflicted with its “look” policy. The Supreme Court held that Title VII does not require a plaintiff to prove that the employer had actual knowledge of the individual’s religious beliefs or practices to establish a disparate treatment claim; rather, the plaintiff must only show that the need for a religious accommodation was a motivating factor in the challenged employment decision. The Court further held that an employer’s unsubstantiated suspicion about the need for a potential religious accommodation will suffice if that suspicion motivated the employer’s decision.

The lower courts have already started to apply Abercrombie to religious accommodation cases across the country. For example, in EEOC v. Jetstream Ground Services, Inc.,the District of Colorado allowed the EEOC to proceed to trial on behalf of a class of Muslim women who alleged that the employer failed to accommodate their wearing hijabs and long skirts on the job, failed to hire them, laid them off or reduced their hours, and discriminated against them on the basis of their religion. With respect to Amina Oba, an employee who never requested an accommodation, but was observed by co-workers changing from headscarf and long skirt to the company’s uniform while at work, and who was subsequently laid off, the court relied on Abercrombie in holding that an employee need only show that his or her need for accommodation was a motivating factor in the employer’s decision. EEOC v. Jetstream Ground Services, 2015 WL 5697315, at *10 (D. Colo. Sept. 29, 2015). Denying summary judgment, the court ruled that there was a triable issue of fact as to whether Jetstream knew “or, at the very least, suspected” that the employee desired an accommodation and laid her off to avoid giving her one. Id. at *12-13.

In sum, religious discrimination is a hot topic, and with the recent expansion of religious accommodation rights, employers should reconsider and retool their existing policies, practices, and procedures. We at Kalijarvi, Chuzi, Newman & Fitch, P.C., are ready to help.